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Rules allowing patients to buy marijuana in plant form and smoke it were contained in the Legislature’s omnibus health and human services bill approved in June. (Ahmed Zayan on Unsplash)

Rules allowing patients to buy marijuana in plant form and smoke it were contained in the Legislature’s omnibus health and human services bill approved in June.

The state office charged with regulating medical cannabis in Minnesota is in the midst of drafting rules that will finish the work of making the biggest change in the program’s seven-year history: allowing patients to buy marijuana in plant form and smoke it — something that was explicitly banned by the 2014 legislation.

The change, which could be finalized early next year, was contained in the Legislature’s omnibus health and human services bill approved in June. It reverses one of the provisions that made Minnesota’s original law one of the most-restrictive medical marijuana programs in the U.S.

“We feel we’ve had an inclusive process and we’re on track to meet the statutory requirement of March 1 or sooner,” said Chris Tholkes, director of the state Office of Medical Cannabis. “We feel like we will have good protections around the product for our patients.”

Initially, only two growers, only eight dispensaries and a handful of medical conditions were included in the program. Minnesota was also the only state at the time that didn’t allow smoking of dried marijuana. As a result of those limitations, only 5,000 patients registered under the law that took effect in 2015.

While there have been expansions of supply and qualifying conditions — the program now has more than 26,000 registered participants — patients can still only purchase oils for vaping, creams and, more-recently, dissolvable mints and lozenges.

Maren Schroeder, the policy director and cofounder of Sensible Change Minnesota, a drug-policy reform organization, said the organization began lobbying for the change after Tim Walz was elected governor. His predecessor, Mark Dayton, had not been open to the change but Walz had said he was.

“The primary argument that was effective was how much it would decrease the price for patients,” Schroeder said.

Still, it took three legislative sessions to amend the program, despite bipartisan legislative support. Schroeder said a key endorsement came from the two companies licensed to produce marijuana products: Green Goods and Leafline Labs.

“It was a little frustrating,” she said. “I’m glad they were able to support us in that move but it would have been nice if we hadn’t spent two years saying the same thing and not being heard.”

There was one other difference in 2021: House DFLers were pushing a recreational marijuana bill that also liberalized the medical marijuana program. That gave opponents of adult-use legalization an incentive to take that issue away from proponents.

“There’s some angst around updating our medical cannabis program and much of it is related to what we don’t know about medical cannabis and its place in the world of medicine,” Sen. Michelle Benson, R-Ham Lake, said during a hearing on the issue in March. “But more of it is about a legalization conversation, which I know is intensifying. This is a sincere step to update our medical cannabis program. It is not a path to legalization.”

Thirty-six states now have some form of legal marijuana for medical purposes. Minnesota was one of just two that still blocked smoking of marijuana flower. Eighteen states and the District of Columbia have legalized recreational marijuana.

The number of medical conditions that now qualify under Minnesota’s program now total 17, and include cancer, glaucoma, HIV/AIDS, severe and persistent muscle spasms, autism spectrum disorder, chronic pain and sickle cell disease. The state is now considering a petition to include anxiety disorder.

But with smoking marijuana not legal in Minnesota, and because of the amount of processing required for oils and extracts, costs were higher — between $300 and $360 a month, according to a study by the Office of Medical Cannabis in the Minnesota Department of Health.

Medical marijuana is not covered by most health insurance. A ruling issued by the Minnesota Supreme Court this week said an employer could not be made to pay for medical cannabis to treat a worker injured on the job.

Advocates, patients and the two providers of medical cannabis told lawmakers that the existing ban on selling the actual plant might have doubled monthly costs to patients. That, and the preference by some to smoke marijuana or make their own edibles has driven many patients who would be eligible for the program to the illicit market.

“I think we’re going to see a significant decrease in price, at least that’s what I’m hoping for,” Schroeder said.

There is no price regulation in state medical marijuana law and she said it may be time to increase the number of providers to increase supply and price competition.

It’s also hoped that legalizing the sale of what’s referred to in the law as “dried raw cannabis” will bring people who use illicit supplies back into the state program. That will increase business for the suppliers, but it will also increase safety for consumers. “We don’t want patients getting unsafe product from the illicit market,” Schroeder said. “We want them getting product from the legal market that has been tested for molds, mildews, heavy metals, pesticides, etc.”

Tholkes estimated that the patient count could triple or quadruple if high cost is no longer an issue, which would translate into as many as 100,000 people in the program. “States that started with not allowing flower and then added it later saw a three-or-four times increase in patients that they had,” Tholkes said.

Tholkes said her office will keep an eye on the market once the new rules take effect. “We are probably in a little bit of a position of we don’t know what we don’t know and so will be keeping a very close eye on supply and demand,” she said.

State law limits the number of providers, but the Walz administration could request a change if MDH determines more are needed.

The Legislature determined the change would take effect March 1 or whenever the rules are completed, whichever is sooner.

Darin Teske, the policy and legal counsel for the medical cannabis office, is charged with producing the new rules. He said he looked first to other states that allow smoking of raw dried cannabis. He also met with advocacy groups and the two providers to assess problems and solutions.

The comment period is open until Nov. 8 and Teske said a final draft should be ready by early December for review by the health commissioner, the governor’s office and other agencies involved with formal rulemaking.

Schroeder has been part of the advisory groups working with the state on the rules and said she is pleased with the proposed rules. She said she was especially pleased with the amount of supply patients can purchase at one time. The Legislature capped that amount at a 90-day supply, but the rules defined what such a supply looks like — 450 grams, with the ability to request larger amounts.

Teske described that amount as being “middle of the road” among states.

Some of the comments on the state website call for the rules to do something the Department of Health is not allowed to do: permit patients to grow their own marijuana plants. That would require a vote of the Legislature and the signature of the governor.

The Minnesota Department of Health does have the authority to make other changes without legislative approval. The commissioner has added medical conditions using a process that allows residents or the Office of Medical Cannabis itself to propose additions.

The commissioner can also add other methods of delivering the active ingredient in marijuana to patients. This year, Schroeder filed a formal proposal to allow the sale of edibles, baked goods or chewables. The commissioner has until Dec. 1 to decide on any changes.

Schroeder said allowing edibles at the same time as dried raw cannabis makes sense because patients could make their own brownies, bars or cakes with the product once they purchase it. But having those products made by licensed producers is better for patients.

“We want patients getting consistently dosed, we want them safe, we want them to be within the limits of the law,” she said. “So anything we can do with our laws and our regulations to make it safer, the better off we are.”

Peter Callaghan covers state government for MinnPost.

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